Unicomb & Anor v Cairns - [2009] FMCA 202

FEDERAL MAGISTRATES COURT OF AUSTRALIA

UNICOMB & ANOR v CAIRNS

[2009] FMCA 202

BANKRUPTCY – Application to set aside a Bankruptcy Notice – applicants claim that the sum specified in the Bankruptcy Notice is incorrect – claim to be confused and misled as to the precise amount being claimed by the creditor.

Bankruptcy Act 1966 (Cth), ss.40(1)(g), 41(5)(6A)
Bankruptcy Regulations 1996 (Cth), reg.4.01(1)(b)
Legal Profession Act 2004 (NSW), ss.368, 369, 379
Uniform Civil Procedures Rules2005 (NSW), r.36.10

Adams v Lambert [2006] HCA 10
Australian Steel 6 (Operations) Pty Ltd v Lewis (2000) 109 FCR 33
Croker v Deputy Commissioner of Taxation [2005] FCA 127
Gorczynski v Perera & Anor [2008] FMCA 55
Kleinwort Benson Australia v Crowell (1988) 165 CLR 71
Re Wimborne; ex parte the Debtor (1979) 24 ALR 494
Wolf v Deputy Commissioner of Taxation (1994) 156 CLR 337

Practice & Procedure of the High Court and Federal Court of Australia (Sydney: Butterworths 1991)

First Applicant:

MICHAEL CHARLES UNICOMB

Second Applicant:

WARREN DONALD TURNER

Respondent:

SUZANNE ROSE CAIRNS

File number:

SYG 3120 of 2008

Judgment of:

Lloyd-Jones FM

Hearing date:

17 February 2009

Delivered at:

Sydney

Delivered on:

13 March 2009

REPRESENTATION

Solicitors for the Applicants:

Mr M. Foley of Foleys Solicitors

Counsel for the Respondent:

Mr J. Baird

Solicitors for the Respondent:

Mullane & Lindsay Solicitors

Agent for the Respondent’s solicitors:

Sally Nash & Co. Solicitors

ORDERS

The application filed by Michael Charles Unicomb and Warren Donald Turner on 27 November 2008 to set aside the Bankruptcy Notice (NN4001 of 2008) is dismissed.
The Applicant Debtors, Michael Charles Unicomb and Warren Donald Turner, are to pay the Respondent Creditor, Suzanne Rose Cairns, costs to be agreed or assessed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3120 of 2008

MICHAEL CHARLES UNICOMB

First Applicant

WARREN DONALD TURNER

Second Applicant

And

SUZANNE ROSE CAIRNS

Respondent

REASONS FOR JUDGMENT

The proceedings

By an application filed on 27 November 2008, Michael Charles Unicomb and Warren Donald Turner (the Applicant Debtors) seek, pursuant to s.40(1)(g) of the Bankruptcy Act 1966 (Cth) (“the Act”), to have the Bankruptcy Notice (NN 4001 of 2008) issued by Suzanne Rose Cairns (the Respondent Creditor) set aside. The applicants dispute the validity of the Bankruptcy Notice on the ground that there was a misstatement of the correct amount and that they were confused as to the correct sum allegedly due to Ms Cairns. That application is opposed by Ms Cairns.
The following evidence was filed by the Applicants in these proceedings:
a)Affidavit of Michael Charles Unicomb sworn 27 November 2008;
b)Affidavit of Warren Donald Turner sworn 27 November 2008.
The following evidence was filed by the Respondent in these proceedings:
a)Affidavit of Anthony David Cavanagh sworn 12 December 2008;
b)Affidavit of Ashleigh Elizabeth John sworn 16 February 2009.

Background

In setting out the following background material I have either paraphrased or quoted directly from the affidavits of Messrs Cavanagh and Turner together with the oral submissions of Messrs Foley and Baird. I have not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Unicomb & Anor v Cairns

Details

AGLC: Unicomb & Anor v Cairns [2009] FMCA 202
Case: [2009] FMCA 202
Decision Date: 13 March 2009

CaseChat Overview and Summary

Unicomb & Anor v Cairns was a case before the Federal Circuit and Family Court of Australia, involving a dispute between Michael Charles Unicomb and Warren Donald Turner, the applicant debtors, and Suzanne Rose Cairns, the respondent creditor. The primary contention was whether the Bankruptcy Notice (NN4001 of 2008) served on Unicomb and Turner was invalid due to procedural errors, and thus should be set aside. The applicants argued that the notice was defective because it did not include the necessary details required by the Bankruptcy Act 1966, specifically a statement of the amount of debt claimed, the grounds of the claim, and the address for service.

The court had to determine whether the deficiencies in the Bankruptcy Notice rendered it invalid and whether these errors warranted setting aside the notice. The applicants contended that the notice did not meet the statutory requirements and thus should be disregarded. The respondent argued that the notice was substantially compliant and that any minor errors did not affect the validity of the notice.

The court found that while the notice was not perfectly compliant with the statutory requirements, the errors were minor and did not affect the validity of the notice. The court emphasised that the primary purpose of the notice, which was to inform the debtors of the creditor's intention to seek bankruptcy, was achieved. The court concluded that the notice was substantially valid and dismissed the application to set it aside. The applicants were ordered to pay the creditor's costs.

Orders

Orders of the court

The application filed by Michael Charles Unicomb and Warren Donald Turner on 27 November 2008 to set aside the Bankruptcy Notice (NN4001 of 2008) is dismissed.

The Applicant Debtors, Michael Charles Unicomb and Warren Donald Turner, are to pay the Respondent Creditor, Suzanne Rose Cairns, costs to be agreed or assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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